Memorandum of Understanding and Supplementary …...binding. The principal agreement is the...

Devolution

Memorandum of Understanding and

Supplementary Agreements

Between the United Kingdom Government, the ScottishMinisters, the Welsh Ministers, and the Northern Ireland

Executive Committee

Presented to Parliament by Command of Her Majestyand presented to the Scottish Parliament and the

Northern Ireland Assembly and laid before the NationalAssembly for Wales.

October 2013

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Contents

Explanatory Note

PART I

Memorandum of Understanding

PART II

Supplementary Agreements

A: Agreement on the Joint Ministerial Committee

A1: The Joint Ministerial CommitteeA2: Annex on the Secretariat to the JMCA3: Agreement on dispute avoidance and resolution

B: Concordat on Co-ordination of European Union Policy Issues

B1: Scotland

B2: Wales

B3: Northern Ireland

B4: Common Annex

C: Concordat on Financial Assistance to Industry

D: Concordat on International Relations

D1: Scotland

D2: Wales

D3: Northern Ireland

D4: Common Annex

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Explanatory Note

This paper, superseding Command Paper Cm5240 published inDecember 2001, comprises a series of agreements between the UKGovernment and the devolved administrations in Scotland, Wales andNorthern Ireland setting out the principles which underlie relationsbetween them. It is not intended that these agreements should be legallybinding.

The principal agreement is the Memorandum of Understanding (MoU).Itprovides for a Joint Ministerial Committee (JMC), which is the subject ofa separate agreement covered in Part II of the MoU. In addition to theJMC agreement, three separate overarching Concordats apply broadlyuniform arrangements across Government to the handling of: the co-ordination of EU policy and implementation; financial assistance toindustry; and international relations touching on the responsibilities ofthe devolved administrations.

Individual UK Government Departments and their counterparts in thedevolved administrations have also agreed and published bilateralconcordats.

Ministerial responsibility within the UK Government for the MoU andJMC agreements lies with the Deputy Prime Minister who has been givenoverall responsibility for the JMC by the Prime Minister. The DeputyPrime Minister also has specific responsibility for chairing the JMC inDomestic format. The Foreign and Commonwealth Secretary isresponsible for the Concordats on the Coordination of European UnionPolicy Issues and on International Relations, and is also responsible forchairing the JMC in European format. The Secretary of State forBusiness, Innovation and Skills is responsible for the Concordat onFinancial Assistance to Industry. The Secretaries of State for Scotland,Wales and Northern Ireland also have responsibilities within the UKGovernment for promoting the devolution settlement, for ensuringeffective working relations between the Government and the devolvedadministrations, and for helping to resolve any disputes which may arise.

The First Minister of Scotland, the First Minister of Wales, and the FirstMinister and deputy First Minister of Northern Ireland have overallresponsibility within their respective Administrations for the MoU and itsassociated overarching concordats. They participate as necessary in thework of the JMC, in particular in helping to resolve any disputes whichmay arise between the devolved administrations and the UKGovernment.

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PART I: MEMORANDUM OF UNDERSTANDING

Introduction

1. This Memorandum sets out the understanding of, on the one hand,the United Kingdom Government, and on the other, the ScottishMinisters, the Welsh Ministers, and the Northern Ireland ExecutiveCommittee ("the devolved administrations") of the principles that willunderlie relations between them. The UK Government represents the UKinterest in matters which are not devolved in Scotland, Wales orNorthern Ireland.'. Policy responsibility for these non-devolved areas iswithin the exclusive responsibility of the relevant UK Ministers andDepartments. It is recognised by these Ministers and Departments that,within the UK Government, the Secretaries of State for Scotland, Walesand Northern Ireland are responsible for ensuring that the interests ofthose parts of the UK in non-devolved matters are properly representedand considered. Other UK Ministers and their departments represent theinterests of England in all matters.

2. This Memorandum is a statement of political intent, and should notbe interpreted as a binding agreement. It does not create legal obligationsbetween the parties. Nothing in this Memorandum should be construedas conflicting with the Belfast Agreement. 2

3. This Memorandum is supplemented by agreements on theestablishment of a Joint Ministerial Committee and for certain otherareas where it is necessary to ensure uniform arrangements for relationsbetween the UK Government and the three devolved administrations. Inparticular, broadly uniform arrangements need to apply to: handling ofmatters with an EU dimension; financial assistance to industry; andinternational relations touching on the responsibilities of the devolved

1 The devolution legislation - that is the Acts of Parliament dealing with devolution: theScotland Act 1998 and 2012, the Government of Wales Acts 1998 and 2006, and theNorthern Ireland Act 1998 - define the respective functions of the UK Government andthe devolved administrations in different ways. This Memorandum simply uses theterms 'devolved' and 'non-devolved'. 'Devolved' means in the Scottish context anyfunction not reserved to the UK Government or Parliament under Schedule 5 to theScotland Act or transferred to the Scottish Ministers under other legislation; in theWelsh context, any function exercisable by the Welsh Ministers, or any matter withinthe legislative competence of the National Assembly for Wales; and in the NorthernIreland context any matter which is not an excepted or reserved matter underSchedules 2 and 3 to the Northern Ireland Act. 'Non-devolved' means anything else.2 The British-Irish Agreement reached at Belfast on 10 April 1998 and the Multi-PartyAgreement reached on the same date and annexed thereto.

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administrations. Recent legislation establishing new arrangements forstatistical work across the UK means the former concordat on thatsubject is no longer necessary (see paragraph 10-11 for more details). Inaddition, the four administrations may prepare Concordats or makeother less formal arrangements to deal with the handling of procedural,practical or policy matters between them. Concordats are not intended tobe legally binding, but to serve as working documents.

Communication and Consultation

4. All four administrations are committed to the principle of goodcommunication with each other, and especially where oneadministration's work may have some bearing upon the responsibilitiesof another administration. The primary aim is not to constrain thediscretion of any administration but to allow administrations to makerepresentations to each other in sufficient time for those representationsto be fully considered.

5. Against this background, and in confidence where necessary (seeparagraph 6 below), the administrations will seek:

• to alert each other as soon as practicable to relevant developmentswithin their areas of responsibility, wherever possible, prior topublication;

• to give appropriate consideration to the views of the otheradministrations; and

• to establish where appropriate arrangements that allow for policiesfor which responsibility is shared to be drawn up and developedjointly between the administrations.

6. It is recognised that there are certain areas of UK Governmentaction - Budget proposals and national security are two examples - inwhich, as a matter of pre-existing practice, advance notification did nottake place or was very limited. These practices are unaffected bydevolution.

7. The devolution legislation (see footnote 1 for definition) provide forstatutory consultation by the UK Govemment with the devolvedadministrations in relation to certain specific matters and vice versa.This Memorandum does not create any equivalent or other legal right tobe consulted.

Co-operation

8. All four administrations want to work together, where appropriate, onmatters of mutual interest. The administrations recognise the importance

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of co-operation across a range of areas. They also recognise that it maybe appropriate for them to undertake activities on each other's behalf,which may be covered in agency arrangements or other agreements.

9. Various public bodies deal with matters within the responsibilitiesboth of the UK Government and of one or more of the devolvedadministrations. The UK Government and devolved administrationsaffirm their commitment to work, together where appropriate, to ensurethat such bodies continue to operate effectively.

Exchange of information, statistics and research

10. In order to enable each administration to operate effectively, theadministrations will aim to provide each other with as full and open aspossible access to scientific, technical and policy information includingstatistics and research and, where appropriate, representations fromthird parties. These exchanges between administrations may be subjectto restrictions or requirements, such as those relating to confidentialityor freedom of information. Each administration will aim to provide anyinformation that may be reasonably requested by another administrationto enable it to carry out its responsibilities effectively, provided that (a)this is practicable, (b) it would not involve disproportionate cost, and (c)the information is available in reasonably accessible form. The emphasiswill always be on exchanging information where this proves possible.Where any of these three provisos is not met, problems will be resolvedon a case-by-case basis.

11. The administrations recognise that co-operation is necessary to meettheir respective policy and business objectives and their collectiveresponsibility to deliver official statistics to the required standard. Eachhas a contribution to make to the provision of statistical advice andinformation in relation to both devolved and reserved matters, and to theproduction of coherent statistics about the UK whilst recognising thatthe priorities and objectives of the administrations may not always beidentical. They have a common interest in promoting the integrity ofofficial statistics and adherence to high professional standards. Specificarrangements for co-operation among the UK Government and devolvedadministrations on official statistics will be contained principally withinan inter-administration agreement made between the NationalStatistician and the Chief Statisticians in each of the devolvedadministrations, and also in other bilateral agreements between UKGovernment departments and the devolved administrations.

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Confidentiality

12. Each administration will wish to ensure that the information itsupplies to others is subject to appropriate safeguards in order to avoidprejudicing its interests. The four administrations accept that in certaincircumstances a duty of confidence may arise and will betweenthemselves respect legal requirements of confidentiality. Eachadministration can only expect to receive information if it treats suchinformation with appropriate discretion. In particular the administrationsaccept:

• it is for the administration providing the information to state what, ifany, restrictions there should be upon its usage;

• unless legally prohibited from doing so, each administration will treatinformation which it receives in accordance with the restrictionswhich are specified as to its usage;

• the administration that is in receipt of the information may be subjectto a legal obligation to disclose information in certain circumstances.For example, where it receives a request under access to informationlegislation (primarily the Freedom of Information Act 2000 / Freedomof Information (Scotland) Act 2002 and Data Protection Act 1998). Incases where it is proposed to release information the originator maybe consulted about the appropriateness of disclosing information andno information will be disclosed, where disclosure is likely to affect theoriginator's interests, without first consulting the originator. The finaldecision as to whether there is a legal obligation to disclose theinformation will rest with the administration that is in receipt of theinformation; and

• some information will be subject to statutory or other restrictions.This may mean that administrations place restrictions on the categoryof persons who may have access to some material. This will assistadministrations in complying with their legal obligations. Forexample ensuring that the Official Secrets Act 1989 and the DataProtection Act 1998 are not breached. There will also be a commonapproach to the classification and handling of sensitive material.

Correspondence

13. The four administrations are committed to providing a satisfactorylevel of service and accountability to the public in this area. As was thecase prior to devolution, officials will need to handle all correspondencein accordance with access to information legislation.

Parliamentary Business

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14. The United Kingdom Parliament retains authority to legislate on anyissue, whether devolved or not. It is ultimately for Parliament to decidewhat use to make of that power. However, the UK Government willproceed in accordance with the convention that the UK Parliament wouldnot normally legislate with regard to devolved matters except with theagreement of the devolved legislature. The devolved administrations willbe responsible for seeking such agreement as may be required for thispurpose on an approach from the UK Government.

15. The United Kingdom Parliament retains the absolute right to debate,enquire into or make representations about devolved matters. It isultimately for Parliament to decide what use to make of that power, butthe UK Government will encourage the UK Parliament to bear in mindthe primary responsibility of devolved legislatures and administrations inthese fields and to recognise that it is a consequence of Parliament'sdecision to devolve certain matters that Parliament itself will in future bemore restricted in its field of operation.

16. The devolved legislatures will be entitled to debate non-devolvedmatters, but the devolved executives will encourage each devolvedlegislature to bear in mind the responsibility of the UK Parliament inthese matters.

17. These same principles will be applied to other aspects of eachadministration's responsibilities towards its Parliament or Assembly. Theadministrations will provide each other, so far as appropriate andpracticable, with information necessary to meet these responsibilities.

International and EU Relations

18. As a matter of law, intemational relations and relations with theEuropean Union remain the responsibility of the United KingdomGovernment and the UK Parliament. However, the UK Governmentrecognises that the devolved administrations will have an interest ininternational and European policy making in relation to devolvedmatters, notably where implementing action by the devolvedadministrations may be required. They will have a particular interest inthose many aspects of European Union business which affect devolvedareas, and a significant role to play in them.

19. Arrangements for the handling of devolved administrations' interestsoutside the United Kingdom are set out in the international relations andEU concordats. The devolved administrations are able to develop bilateralor multilateral arrangements with other members of the British-IrishCouncil, including the Republic of Ireland, and to participate in theBritish-Irish Council itself, as set out in the Belfast Agreement. The

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Northern Ireland Executive Committee is also able to develop relationswith the Irish Government through the North/South Ministerial Councilprovided for in that Agreement.

20. The UK Government will involve the devolved administrations as fullyas possible in discussions about the formulation of the UK's policyposition on all EU and international issues which touch on devolvedmatters. This must, obviously, be subject to mutual respect for theconfidentiality of those discussions and adherence to the resultant UKline, without which it would be impossible to maintain such closeworking relationships.

21. The devolved administrations are responsible for observing andimplementing international, European Court of Human Rights andEuropean Union obligations which concern devolved matters. In law, UKMinisters have powers to intervene in order to ensure the implementationof these obligations. If the devolved administrations wish, it is open tothem to ask the UK Government to extend UK legislation to cover theirEU obligations. The devolved administrations are directly accountablethrough the domestic courts, in the same way as the UK Government is,for shortcomings in their implementation or application of EC law. It isagreed by all four administrations that, to the extent that financialpenalties are imposed on the UK as a result of any failure ofimplementation or enforcement, or any damages or costs arise as aresult, responsibility for meeting them will be borne by theadministration( s) responsible for the failure.

Non-devolved matters

22. The UK Government represents the UK interest in matters which arenot devolved in Scotland, Wales or Northern Ireland. Policy responsibilityfor such matters lies with the relevant UK Ministers and Departments.Within the UK Government, the Secretaries of State for Scotland, Walesand Northern Ireland will continue to ensure that the interests of thoseparts of the UK in non-devolved matters are properly represented andconsidered. The devolved administrations agree to provide the UKGovernment with any factual information and expert opinion available tothem relevant to such non-devolved matters.

The Joint Ministerial Committee

23. The UK Government and the devolved administrations believe thatmost contact between them should be carried out on a bilateral or multi-lateral basis, between departments which deal on a day-to-day basis with

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the issues at stake. Nonetheless, some central co-ordination of theoverall relationship is needed. Therefore the administrations agree toparticipate in a Joint Ministerial Committee (JMC) consisting of UKGovernment, Scottish, Welsh and Northern Ireland Ministers.

24. Detailed arrangements for the JMC are set out in SupplementaryAgreement A. Its terms of reference are:

• to consider non-devolved matters which impinge on devolvedresponsibilities, and devolved matters which impinge on non-devolved responsibilities;

• where the UK Government and the devolved administrations soagree, to consider devolved matters if it is beneficial to discusstheir respective treatment in the different parts of the UnitedKingdom;

• to keep the arrangements for liaison between the UK Governmentand the devolved administrations under review; and

• to consider disputes between the administrations.

25. The UK Government and the devolved administrations committhemselves, wherever possible, to conduct business through normaladministrative channels, either at official or Ministerial level. TheSecretaries of State for Scotland, Wales and Northern Ireland, whosefunctions include the promotion of good relations between the UKGovernment and the respective devolved administrations, should beconsulted in any significant case of disagreement.

26. Where a dispute cannot be resolved bilaterally or through the goodoffices of the relevant territorial Secretary of State the matter mayformally be referred to the JMC Secretariat subject to the broaderprinciples and arrangements for dispute avoidance and resolution set outat Section A:3 of this Memorandum of Understanding.

Implementation of devolution settlements

27. The devolution legislation contains various powers for the Secretaryof State to intervene in devolved matters. It also contains powers for theLaw Officers to refer questions of vires to the UK Supreme Court.Although the UK Government is prepared to use these powers ifnecessary, it sees them very much as a matter of last resort. The UKGovernment and the administration concerned will therefore aim toresolve any difficulties through discussion so as to avoid any action oromission by the devolved administration having an adverse impact onnon-devolved matters. If formal intervention should become necessary,the UK Government will whenever practicable inform the devolved

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administration of its intentions in sufficient time to enable thatadministration to make any representations it wishes, or take anyremedial action.

28. In order to enable the UK Government to decide whether they need toactivate these procedures, the devolved administrations will notifylegislative measures to the relevant UK Departments and Law Officersboth when they are proposed and when they are adopted. Legislativeproposals will normally have been subject to advance notification andconsultation, in accordance with the general principles set out above.

Reviewing bilateral relations

29. The administrations recognise that there may be a need from time totime for some adjustment to be made to the devolution settlements, forexample, in response to new issues or in the light of the operation of thesettlements. The administrations agree that there should be mechanismsin place to review the operation of the settlements and for adjustments tobe agreed.

30. The JMC and its supporting functional and official committees willtherefore keep the broad operation of the arrangements under review andwill also look at the effectiveness of concordats and bilateral relationsmore generally. The JMC Secretariat will also have a role in keeping thearrangements under review and providing advice on concordats both tothe JMC and to the administrations.

Review of this Memorandum of Understanding

31. This document will be reviewed by representatives of theadministrations at a meeting of the JMC at least annually and updatedas necessary.

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PART II: SUPPLEMENTARY AGREEMENTS

A1: THE JOINT MINISTERIAL COMMITTEE

Al.I The UK Government and the three devolved administrations haveagreed to participate in a Joint Ministerial Committee (JMC) consisting ofUK Government, Scottish, Welsh and Northern Ireland Ministers. Thissupplementary agreement sets out the basis on which the Committee willoperate, pursuant to the Memorandum of Understanding.

Al.2 The terms of reference of the Joint Ministerial Committee are:

a. to consider non-devolved matters which impinge on devolvedresponsibilities, and devolved matters which impinge on non-devolvedresponsibilities;b. where the UK Government and the devolved administrations so agree,to consider devolved matters if it is beneficial to discuss their respectivetreatment in the different parts of the United Kingdom;c. to keep the arrangements for liaison between the UK Government andthe devolved administrations under review; andd. to consider disputes between the administrations.

A1.3 Plenary meetings of the JMC will be held at least once a year. Theywill consist of the Prime Minister (or his representative), who will take thechair, the Scottish and Welsh First Ministers, each together with one oftheir Ministerial colleagues, the Northern Ireland First Minister anddeputy First Minister, and the Secretaries of State for Scotland, Walesand Northern Ireland. Other Ministers will be invited to attend asappropriate when issues relevant to their areas of responsibility are to bediscussed.

AlA The Joint Ministerial Committee may also meet in other "functional"formats: for example, JMC Europe (JMC(E)) or JMC Domestic (JMC(D)).The Secretaries of State for Scotland, Wales and Northern Ireland will beinvited to participate in these meetings as appropriate. Irrespective oftheir location, the meetings will be chaired by the responsible UKMinister.

Al.5 The JMC will also be available to try to resolve differences betweenthe UK Government and one of the devolved administrations on a matterwhich does not affect the other administrations. In such a case, aCommittee will be composed of appropriate Ministers from the UK

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Government and the devolved administration concerned under thechairmanship of an appropriate senior UK Minister.

AI.6 Meetings of the JMC, in its various guises, will be held for threepurposes: to take stock of relations generally and of the way in which thedevolution arrangements are working in a particular area; to discusspolicy development where policy responsibility straddles both devolvedand non-devolved matters; and to address particular issues or problems.In the latter case, the presumption is that an issue will come to the JMConly when there is an impasse: i.e. following an unsuccessful bilateralexchange at Ministerial level (see section A3 for more details on themechanics/principles for managing dispute resolution).

AI. 7 Where a dispute cannot be resolved bilaterally, or through theoffices of the relevant territorial Secretary of State, the matter mayformally be referred to the JMC Secretariat by anyone administration.Each bilateral concordat will include a reference to the process fortriggering formal JMC intervention. Where this appears likely, the JMCSecretariat should be consulted at an early stage in order to ensure aconsistent interpretation of the devolution settlements, and to provideadvice on handling of any differences of view.

Al.8 Meetings of the JMC, in the appropriate functional guise, will beheld at the request of the UK Government or any of the devolvedadministrations. The responsibility for convening a meeting lies with theresponsible UK Minister and this will be done within one month of thereferral being received, or another period by agreement.

Al.9 The JMC - chaired for this purpose by the Foreign Secretary (or hisrepresentative) - will also operate as one of the principal mechanisms forconsultation on UK positions on EU issues which affect devolvedmatters. The fact that rapid decisions have to be taken on EU issues tomeet the timetable of negotiations in the Council of Ministers, as well asthe Government's own wish to involve the devolved administrations asfully as possible in discussions on the formulation of UK policy positions,necessitates a mechanism which enables the lead UK Minister wherenecessary to consult other UK Government Ministers and theircounterparts in the devolved administrations simultaneously. In thisfunctional format, it is likely that the majority of business will beconducted through correspondence, although meetings will also beconvened where necessary.

Al.IO The JMC is a consultative body rather than an executive body, andso will reach agreements rather than decisions. It may not bind any ofthe participating administrations, which will be free to determine theirown policies while taking account of JMC discussions. Nonetheless, the

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expectation is that participating administrations will support positionsthat the JMC has agreed.

Confidentiality and Public Statements

Al.ll The proceedings of each meeting of the JMC will be regarded asconfidential by the participants, in order to permit free and candiddiscussion. However, the holding of JMC meetings may be made knownpublicly, and there may be occasions on which the Committee will wishto issue a public statement on the outcome of its discussions. Acommunique to be agreed between the participating ministers willusually be issued following each JMC plenary.

Committee of officials

Al.l2 A Committee of officials from the UK Government and the devolvedadministrations will shadow the Joint Ministerial Committee and preparefor its meetings. It will consist of at least one representative from eachadministration, and, as appropriate, a representative of the Secretaries ofState for Scotland, Wales and Northem Ireland. Representatives of otherWhitehall Departments will be invited to attend as appropriate whenissues relevant to their areas of responsibility are to be discussed. Thechairman of the Committee will be the Cabinet Secretary (or hisrepresentative) and the JMC Secretariat will provide secretarial facilities.

Al.l3 Meetings will be regarded as confidential by the participants. Theofficial Committee may establish other "functional" formats to deal withindividual subject areas. In particular, an official committee for EUbusiness will consider EU issues. The same principles of membership,chairmanship and secretarial support and confidentiality will apply tothese committees as to the principal official committee.

Joint Secretariat

Al.l4 The JMC Secretariat will comprise staff from the UK CabinetOffice and the devolved administrations. Its composition and role isdescribed in the attached Annex (A2).

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A2:Annex on the Secretariat to the JMC

A2.1 The Joint Secretariat will comprise staff from the UK Cabinet Officeand the devolved administrations. The lead role within the Secretariatwill fall upon the UK Cabinet Office, including responsibility for servicingmeetings and despatching documents as required. However, inaccordance with the traditional role of the Cabinet Office, although it willretain a certain responsibility to the Prime Minister as chairman of theJMC, the Secretariat will be bound to provide an impartial service to allmembers of the JMC. It will remain possible for staff of the devolvedadministrations to be seconded to work in this as in other areas of theCabinet Office.

A2.2 The functions of the Joint Secretariat will depend upon the needs ofthe moment, but the Secretariat will be a resource which is available for:

a. servicing meetings of the JMC and its official counterpart;b. general liaison, including ensuring that the exchange of information

between administrations is adequate (this should not be taken assuperseding normal bilateral contacts);

c. preparing a forward look of issues likely to require discussion by theJMC;

d. maintaining an overview of the workings of the devolutionarrangements, including concordats and the resolution of disputesarising from them;

e. where necessary, ensuring liaison between the UK Government andthe devolved administrations on issues cutting across conventionaldepartmental boundaries, for example social exclusion, and theprevention of drug misuse;

f. reviewing constitutional issues of importance to all fouradministrations, such as guidelines for officials of one administrationpreparing to give evidence before the legislature of a differentadministration; and

g. helping to resolve bilateral problems, including vires disputes.

A2.3 The presumption is that in most circumstances the administrationswill arrange bilateral meetings without the need to involve the JMCSecretariat, which will become involved only if circumstances require ite.g. in the event of an unresolved dispute. Meetings of the JMC infunctional format may, by agreement, be serviced by the lead WhitehallDepartment.

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A2.4 The Joint Secretariat will also liaise as necessary with theSecretariat to the British-Irish Council established pursuant to theBelfast Agreement3.

A2.5 It is recognised that the staff of the UK Government and thedevolved administrations who make up the component sections of theJoint Secretariat are likely also to be involved in co-ordinating their ownadministrations' stance towards JMC business. The UK Government andthe devolved administrations recognise that there will sometimes come apoint in discussions between the administrations at which the differentparties will need to reserve their position or, especially when legalproceedings seem likely, cease to participate in joint discussion of anissue.

3 The British-Irish Council comprises representatives of the British and IrishGovernments, the Northern Ireland Executive, the Scottish Ministers, the WelshMinisters, the Government of the Isle of Man, the Bailiwick of Guernsey and theBailiwick of Jersey (and, if appropriate in due course, elsewhere in the UK). It promotesdiscussion, consultation and co-operation on matters of mutual interest between theparticipating administrations. The Secretariat is provided jointly by the British and IrishGovernments in co-ordination with officials from the other member administrations.

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A3. DISPUTE AVOIDANCE AND RESOLUTION

A3.1 This agreement, between the UK Government and the devolvedadministrations, outlines procedures for avoiding and resolving disputesbetween administrations consistent with the general principles set out inthe Memorandum of Understanding. In particular it builds on (but doesnot replace) the terms of reference of the Joint Ministerial Committee,which include 'to consider disputes between the administrations', as setout in paragraph 23 of the MoU; paragraphs 24 and 25; paragraphs A1.5and A1.7 of the Supplementary agreement on the JMC; and paragraphs12.1 and 12.2 of the UK Government's Statement of Funding Policy. Anumber of concordats include procedures on avoiding and resolvingdifferences, and this agreement supplements but does not replace them.Like the MoU itself this agreement is a statement of intent, creating nolegal obligations between the parties, and binding in honour only.

A3.2 In order to reduce to the minimum the potential for disputes toarise, the parties recommit themselves to the principles of goodcommunication and cooperation set out in the Memorandum ofUnderstanding.

Invocation of procedures in this agreement

A3.3 The parties undertake to follow these procedures in good faith andin a timely manner in order to resolve differences that occur in theoperation of the current arrangements. (The procedures are not intendedto deal with differences over possible change to the overall statutoryframework governing devolution). When differences arise it is theobligation of all those involved to make determined efforts to resolvethem, in accordance with the principles of the MoU, including thoserelating to confidentiality.

A3.4 There may be circumstances, particularly those arismg fromdifferences in political outlook, where the UK Government and one ormore of the devolved administrations are unlikely to be able to agree. Inthese cases the parties to this agreement recognise that the JMCmachinery is unlikely to offer any prospect of resolution. They alsorecognise, consistently with the principle that the JMC is not a decision-making body, that the basis on which the procedures will operate is thefacilitation of agreement between the parties in dispute, not theimposition of any solution.

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A3.5 There may at times be disputes between administrations on theinterpretation of legal provisions relating to devolution. Without prejudiceto the powers to place these before the courts, the administrations willgenerally seek first to resolve them in line with this protocol.

Resolution of differences at working level

A3.6 All efforts should be made to resolve differences informally and atworking level if possible. Where this fails, the issue should be brought tothe attention of more senior officials, including, if other steps areunsuccessful, members of the JMC officials' framework i.e. JMC(O) orsenior officials supporting the JMC(D) or JMC(E) as appropriate. Allshould fully commit themselves to achieving agreement if possible. If noagreement is reached at official level, Ministers should make every effortto resolve the problem without the need formally to invoke the JMCprocess. These steps should proceed in a timely manner.

A3.7 The MoU recognises the key responsibility of the relevantterritorial Secretary of State for promoting effective working relations andhelping resolve disputes [paragraph 24, AI. 7]. The relevant territorialSecretary of State or his / her officials should always be made aware ofany dispute that threatens to be incapable of informal resolution, andinvolved in relevant discussions. Where discussions involving the partiesdo not achieve agreement, the relevant territorial Secretary of State orofficials may by agreement convene further talks between the parties atministerial or official level.

A3.8 The Statement of Funding Policy sets out the UK Government'srules for resolving financial issues. Before the JMC process set out in theStatement of Funding Policy is invoked for differences about financialissues including the interpretation of the Statement of Funding Policy,these should generally be first discussed bilaterally between the Treasuryand the relevant devolved administrations or if appropriate at a timelyFinance Quadrilateral meeting bringing together Treasury ministers andfinance ministers of the devolved administrations.

References to JMC Secretariat

A3.9 Where the preceding steps have not resolved a difference, any ofthe parties may formally refer it to the JMC secretariat, so that steps canbe taken to resolve it through the JMC process. A difference so referred isknown as a disagreement.

A3.10 When it is notified of a disagreement, the Secretariat will normallyconvene a meeting of officials from the administrations involved(including representatives of the relevant territorial Secretaries of State).

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Through this process, the Secretariat will seek agreement on the facts,provide an opportunity for the parties to set out their positions andfacilitate discussion of shared interests, options for resolving thedisagreement and criteria for an agreed outcome. It will also inform theother administrations. This will be done within one month of the referralbeing received, or another period by agreement. Where a meeting of JMC(Official) is due to take place it may also consider the issue and involveofficials from the policy area concerned.

A3.11 The outcome of this meeting will be one of: a proposal put to therelevant Ministers for their agreement; a report to the relevant Ministersseeking their agreement for a further round of the process at official level;agreement that a request should be made for an independent third partyreport in terms of paragraphs 3.11a-c, or, exceptionally, a referral to theJMC. A disagreement so referred is known as a dispute.

A3.11a With the agreement of the parties to the disagreement, the seniorofficial chairing the meeting of officials may commission independentanalysis of the issues relating to the disagreement by an agreed thirdparty. This may be done in advance of or at the official-level meeting.Any party to the dispute may request such a piece of independentanalysis although all parties must agree on the terms of reference for thisanalysis before it can be taken forward.

A3.11b In the event that independent analysis is commissioned, the thirdparty, with the support of the Secretariat, should consider the issues inline with the agreed terms of reference and provide a written report to theChair and the parties to the disagreement setting out his or her analysis.The parties must decide, with facilitation from the Chair, whether tofollow the advice or recommendations contained in that report althoughany such advice or recommendation is not binding on the parties to thedispute.

A3.11c Where a further meeting of officials is convened to consider theindependent report, the outcome of that meeting will be one of: aproposal put to the relevant Ministers for their agreement; a report to therelevant Ministers seeking their agreement for a further round of theprocess at official level; or, exceptionally, any of the parties to anunresolved disagreement may refer it to the JMC as a dispute.

JMC meetings to deal with disputes

A3.12 Where a dispute has been referred to JMC, the Secretariat willschedule a meeting in accordance with paragraph A1.5 of the Agreementon the JMC to consider the dispute. This will be done within one monthof the referral being received, or another period by agreement.

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Attendance would include ministers from the UK departments and thedevolved administrations involved in the dispute, along with the relevantterritorial Secretaries of State or their representatives. The senior UKMinister chairing will as far as possible be someone without a directdepartmental interest in the issue in dispute. The meeting might takeplace on the same date as a regular JMC meeting but would be separatefrom that meeting.

A3.13 With the support of the Secretariat, the Minister chairing willprovide a further opportunity for the parties to set out their positions andwill facilitate discussion of shared interests, options for resolving thedispute and criteria for an agreed outcome. The Minister chairing may inadvance of the meeting wish to make informal efforts to resolve matters.

A3.14 The outcome of this meeting will be one of: an agreement resolvingthe dispute; agreement to a further round of the process at Ministeriallevel; an agreement that a request should be made for an independentthird party report in terms of paragraphs A3.14a-c; agreement that noresolution can be reached; or, exceptionally, a request by any party thatthe dispute be considered by a JMC Plenary meeting.

A3.14a With the agreement of the parties to the dispute, the Ministerchairing the dispute-resolution meeting may commission independentanalysis of the issues relating to the dispute by an agreed third party.This may be done in advance of, or at, the Ministerial meeting. Any partyto the dispute may request such a piece of independent analysis althoughall parties must agree on the terms of reference for such an analysisbefore it can be taken forward.

A3.14b In the event that independent analysis is commissioned, the thirdparty, with the support of the Secretariat, should consider the issues inline with the agreed terms of reference and provide a written report to theChair and the parties to the dispute setting out his or her analysis. Theparties must decide, with facilitation from the Chair, whether to followthe advice or recommendations although any such advice orrecommendation is not binding on any of the parties to the dispute.

A3.14c Where a further meeting is convened to consider the independentreport, the outcome will be one of the following options: an agreementresolving the dispute; an agreement to a further round of the process atMinisterial level; agreement that no resolution can be reached; or,exceptionally, a request by any party that the dispute be considered by aJMC Plenary meeting.

A3.14d If no additional Ministerial meeting or Plenary meeting isrequested, the chair of the Ministerial dispute meeting will write to the

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parties within three months of the most recent meeting (or by anotherdate by agreement) to ask whether they regard the process as ended.

A3.14e The consideration of a dispute by a JMC Plenary meeting is final,and there are no further stages within the dispute resolution process,unless a Plenary meeting decides to remit consideration of the disputeback to a further round of the Ministerial-level discussions described atparagraph A3.12.

A3.15The Secretariat will provide for JMC Plenary at least annually arecord of disagreements and disputes and the outcome or current stageeach has reached.

A3.16 Where a disagreement or dispute has been resolved or is close toresolution, parties to the disagreement or dispute should attempt toagree a plan for handling any media announcement of the resolution.

A3.17 In the spirit of continuous improvement, the four administrationswill review, and seek to agree, further development of the approach to theavoidance and resolution of disputes set out above

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B: CONCORDAT ON CO-ORDINATION OF EUROPEAN UNION POLICYISSUES

Bl: Concordat on Co-ordination of European Union Policy Issues -Scotland

B1.1 This document and the common Annex (B4) are to be read inconjunction with the Memorandum of Understanding (MoU)between theUK Government, the Scottish Ministers, the Welsh Ministers and theNorthern Ireland Executive Committee and the enabling legislationestablishing these administrations. Reference to devolved or non-devolved matters will be construed in accordance with the MoU.

B1.2 This concordat is an agreement between the Scottish Ministers andthe UK Government. This concordat is not intended to constitute alegally enforceable contract or to create any rights or obligations whichare legally enforceable. It is intended to be binding in honour only.

B1.3 This Concordat sets out the mechanisms between UK Governmentand the Scottish Ministers for the handling of EU business. Specifically,the Concordat covers:

• provision of information;• formulation of UK policy;• attendance and representation at Council of Ministers and related

meetings;• implementation of EU obligations; and• infraction proceedings.

B1.4 The UK engages with the EU in many different fora and thepracticalities attached to developing and presenting UK policy are to behandled in line with the general principles set out in this paper. Otherconcordats may set out the procedure in more detail as appropriate.

General

B1.5 As all foreign policy issues are non-devolved, relations with theEuropean Union are the responsibility of the Parliament and Governmentof the United Kingdom, as Member State. However, the UK Governmentwishes to involve the Scottish Ministers as directly and fully as possiblein decision making on EU matters which touch on devolved areas(including non-devolved matters which impact on devolved areas andnon-devolved matters which will have a distinctive impact of importance

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in Scotland). In general, it is expected that consultation, the exchange ofinformation and the conventions on notifications to EU bodies willcontinue in similar circumstances to the arrangements in place prior todevolution.

B1.6 Participation will be subject to mutual respect for the confidentialityof discussions and adherence by the Scottish Ministers to the resultingUK line without which it would be impossible to maintain such closeworking relationships. This line will reflect the interests of the UK as awhole. In accordance with these general principles, the co-ordinationmechanisms should achieve three key objectives:

• they should provide for full and continuing involvement of ScottishMinisters and their officials in the processes of policy formulation,negotiation and implementation, for issues which touch ondevolved matters;

• they should ensure that the UK can negotiate effectively, in pursuitof a single UK policy line, but with the flexibility that fast-movingnegotiations require; and

• they should ensure EU obligations are implemented withconsistency of effect and where appropriate of timing.

B1.7 Such mechanisms should also ensure that the Scottish Ministersand the UK Government inform each other of any relevant policyproposals which might impact on either existing or new EU proposals orrequirements. They should also ensure that, when required by EClegislation, relevant obligations or initiatives are reported to theCommission and when necessary the other Member States.

B1.8 The arrangements in the common Annex (B4) are intended to beadaptable to suit the differing circumstances of individual cases.

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B2: Concordat on Co-ordination of European Union Policy Issues -Wales

B2.1 This document and the common Annex (B4) are to be read inconjunction with the Memorandum of Understanding (MoU)between theUK Government, Scottish Ministers, the Welsh Ministers and theNorthern Ireland Executive Committee and the enabling legislationestablishing these administrations. Reference to devolved or non-devolved matters will be construed in accordance with the MoU.

B2.2 This concordat is an agreement between the Welsh Ministers andthe UK Government. This concordat is not intended to constitute alegally enforceable contract or to create any rights or obligations whichare legally enforceable. It is intended to be binding in honour only.

B2.3 This Concordat sets out the mechanisms between UK Governmentand the Welsh Ministers for the handling of EU business. Specifically,the Concordat covers:



B2.4 The UK engages with the EU in many different fora and thepracticalities attached to developing and presenting UK policy are to behandled in line with the general principles set out in this document.Other concordats may set out the procedure in more detail asappropriate.

General

B2.S As all foreign policy issues are non-devolved, relations with theEuropean Union are the responsibility of the Parliament and Governmentof the United Kingdom, as Member State. However, the UK Government

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wishes to involve the Welsh Ministers as directly and fully as possible indecision making on EU matters which touch on devolved areas (includingnon-devolved matters which impact on devolved areas and non-devolvedmatters which will have a distinctive impact of importance to Wales). Ingeneral, it is expected that consultation, the exchange of information andthe conventions on notifications to EU bodies will continue in similarcircumstances to the arrangements in place prior to devolution.

B2.6 Participation will be subject to mutual respect for the confidentialityof discussions and adherence by the Welsh Ministers to the resulting UKline without which it would be impossible to maintain such close workingrelationships. This line will reflect the interests of the UK as a whole. Inaccordance with these general principles, the co-ordination mechanismsshould achieve three key objectives:

• they should provide for full and continuing involvement of theWelsh Ministers and their officials in the processes of policyformulation, negotiation and implementation, for issues whichtouch on devolved matters;



B2.7 Such mechanisms should also ensure that the Welsh Ministers andthe UK Govemment inform each other of any relevant policy proposalswhich might impact on either existing or new EU proposals orrequirements. They should also ensure that, when required by EClegislation, relevant obligations or initiatives are reported to theCommission and when necessary the other Member States.


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B3: Concordat on Co-ordination of European Union Policy Issues -Northern Ireland

B3.1 This document and the common Annex (B4) are to be read inconjunction with the Memorandum of Understanding (MoU)between theUK Government, Scottish Ministers, the Welsh Ministers and theNorthern Ireland Executive Committee and the enabling legislationestablishing these administrations. Reference to devolved or non-devolved matters will be construed in accordance with the MoU.

B3.2 This concordat is an agreement between the Northern IrelandExecutive Committee and the UK Government. This concordat is notintended to constitute a legally enforceable contract or to create anyrights or obligations which are legally enforceable. It is intended to bebinding in honour only.

B3.3 This Concordat sets out the mechanisms between UK Governmentand the Northern Ireland Executive Committee for the handling of EUbusiness. Specifically, the Concordat covers:



B3.4 The UK engages with the EU in many different fora and thepracticalities attached to developing and presenting UK policy are to behandled in line with the general principles set out in this paper. Otherconcordats may set out the procedure in more detail as appropriate.

General

B3.5 As all foreign policy issues are non-devolved, relations with theEuropean Union are the responsibility of the Parliament and Governmentof the United Kingdom, as Member State. However, the UK Governmentwishes to involve the Northern Ireland Executive Committee as directly

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and fully as possible in decision making on EU matters which touch ondevolved areas (including non-devolved matters which impact ondevolved areas and non -devolved matters which will have a distinctiveimpact of importance in Northern Ireland). In general, it is expected thatconsultation, the exchange of information and the conventions onnotifications to EU bodies will continue in similar circumstances to thearrangements in place prior to devolution.

B3.6 Participation will be subject to mutual respect for the confidentialityof discussions and adherence by the Northern Ireland ExecutiveCommittee to the resulting UK line without which it would be impossibleto maintain such close working relationships. This line will reflect theinterests of the UK as a whole. In accordance with these generalprinciples, the coordination mechanisms should achieve three keyobjectives:

• they should provide for full and continuing involvement ofNorthern Ireland Ministers and their officials in the processes ofpolicy formulation, negotiation and implementation, for issueswhich touch on devolved matters;



B3.7 Such mechanisms should also ensure that the Northern IrelandExecutive Committee and the UK Government inform each other of anyrelevant policy proposals which might impact on either existing or newEU proposals or requirements. They should also ensure that, whenrequired by EC legislation, relevant obligations or initiatives are reportedto the Commission and when necessary the other Member States.


North/South Arrangements

B3.9 As required by the Belfast Agreement, the North/South MinisterialCouncil brings together those with executive responsibilities in NorthernIreland and the Irish Government to develop consultation, co-operationand action within the island of Ireland on matters of mutual interest

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within the competence of the administrations. This includesconsideration of the European Union dimension of relevant matters,including the implementation of EU policies and programmes. TheSpecial EU Programmes Body has a clear operational remit as set out inthe North/South Co-operation (Implementation Bodies) (NorthernIreland) Order 1999. This concordat applies to the Northern IrelandExecutive Committee's participation in North/South arrangements. Inaccordance with paragraph 17 of Strand II of the Belfast Agreement,arrangements are to be made to ensure that the views of theNorth/South Ministerial Council are taken into account and representedappropriately at relevant EU meetings.

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B: CONCORDAT ON CO-ORDINATION OF EUROPEAN UNION POLICY

B4: Co-ordination of European Policy Issues: Common Annex

Provision of Information

B4.1 In order to contribute effectively to the United Kingdom's decisionmaking on European Union (EU) matters, the devolved administrationswill need to have information on relevant EU business includingproposals for Treaty change. The UK Government will therefore providethe devolved administrations with full and comprehensive information,as early as possible, on all business within the framework of theEuropean Union which appears likely to be of interest to the devolvedadministrations, including notifications of relevant meetings within theEU. This is likely to mean all initiatives within the framework of the EUwhich appear to touch on matters which fall within the responsibility ofthe devolved administrations. The same policy will be followed by thedevolved administrations on such issues likely to be of interest to the UKGovernment.

B4.2 These arrangements will rely for their effectiveness on mutualrespect for the confidentiality of information (including statistics)exchanged. Complete confidentiality is often essential in formulating aUK negotiating position in the EU and in developing tactical responses.

Participation in formulation of UK Policy (including Resolution ofDifferences)

B4.3 It is the Government's intention that Ministers and officials of thedevolved administrations should be fully involved in discussions withinthe UK Government about the formulation of the UK's policy position onall issues which touch on matters which fall within the responsibility ofthe devolved administrations. To facilitate clarity and understanding onthe point when a Whitehall policy position evolves into a UK Governmentnegotiating line, consistent with the Government representing the UnitedKingdom as a Member State of the European Union, consultation withDevolved Administrations includes the upstream opportunities toinfluence EU proposals in the period before they emerge as well as theperiod after formal proposals are made and includes the period beforeapproval is sought for a UK line from the European Affairs Committee.

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B4.4 The arrangements outlined below assume maximum co-operationon both sides, although they will also need to work effectively when suchco-operation is not forthcoming.

Ministerial involvement

B4.5 Many issues will be capable of being dealt with bilaterally betweenthe lead Whitehall Department and the devolved administrations.

B4.6 Even where EU issues require wider inter-departmentalconsultation, it may often be possible (as at present) to resolve the matterthrough correspondence; and the arrangements described in thisdocument for copying papers widely to the devolved administrations willhelp to ensure that matters are resolved in this way wherever possible.EU business operates to an externally imposed timetable and the UK willneed to determine its negotiating position in good time. Potential areas ofcontention will therefore be identified as early as possible, and everyeffort made to resolve them without escalating discussions to seniorlevels.

B4.7 Where it is not possible to resolve matters bilaterally or bycorrespondence as described above, the Government envisage that suchEU issues will be considered by the Joint Ministerial Committee inEuropean format (paragraph AI. 9 of the supplementary agreement onthe JMC), which will bring together UK Ministers and Ministers of thedevolved administrations to discuss non-devolved matters which touchon matters which fall within the responsibility of the devolvedadministrations, and where appropriate the treatment of matters fallingwithin the responsibility of the devolved administrations in differentparts of the UK. In the case of EU matters, the JMC will be the forum forseeking to resolve differences between the UK Government and thedevolved administrations. The procedure to be followed for handling EUbusiness within the JMC is laid down in the supplementary agreementon the JMC.

B4.8 The JMC meeting in this format has also adopted the followingpractices:

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• Meetings will be held in advance of each scheduled EuropeanCouncil meeting and may be held more regularly;

• The JMC Secretariat will endeavour to circulate at the outset ofeach year a forward timetable with suggested dates and agendaitems for JMC(E) meetings with a view to ensuring that meetingsare held on dates and at times on which Ministers from alladministrations are able to attend;

• Officials will meet around ten working days in advance of eachJMC(E) to ensure in particular that the Devolved Administrationshave an active role in agreeing the JMC(E) agenda and discussingdraft papers;

• JMC(E) meetings will be supported by high quality discussionpapers normally introduced by the lead UK Minister. JMC(E)papers will be circulated at least 48 hours in advance in line withnormal Cabinet Committee arrangements although drafts will becirculated to devolved administrations further in advance wheneverpossible;

• The JMC(E) will consider the UK's early influencing priorities basedon a list provided by the Foreign Secretary and followingpublication of the European Commission's annual WorkProgramme.

• All administrations will be given the opportunity to clarify points inthe minutes of JMC(E), meetings at Ministerial or official level inrelation to their own interventions before the minutes arecirculated more widely; and

• Meetings of JMC(E) either at Ministerial or official level may takeplace on occasion in Belfast, Cardiff or Edinburgh.

B4.9 In the case of implementation of EU obligations, the widerprovisions for resolution of vires disputes through reference to theSupreme Court will apply, with the UK Parliament and UK Ministersretaining the power, as provided under the devolution legislation, tolegislate to implement EU obligations throughout the UK.

Official Involvement

B4.10 In line with paragraphs B4.2 and B4.3 above, lead Whitehalldepartments and UKRep (within its normal reporting responsibilities) willinform officials of the devolved administrations of developments in EU

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business which touch on matters which fall within the responsibility ofthe devolved administrations, including non-devolved matters whichmight impact on areas for which Devolved Ministers have competence.Such information will be shared both with the devolved administrationsand with other interested Government Departments from the outset.Officials of the devolved administrations will have access to relevantpapers (including telegrams) which are copied inter-departmentally byUKRep and lead Whitehall departments.

B4.11 The EU official sub-committee of the JMC will provide animportant forum for discussing EU issues. In addition, informalcommunications and meetings at official level will continue to make amajor contribution to the resolution of EU issues. Officials of thedevolved administrations will be included in these contacts.

B4.12 Clearly the nature of consultation procedures in individual caseswill depend on the nature of the issue, on previous practice and on thedegree of urgency. Depending on the circumstances, issues might bedealt with bilaterally between the lead Whitehall department and thedevolved administrations without the need for wider inter-departmentalconsultation. In cases where wider inter-departmental consultation isnecessary, individual Departments could choose to consult bilaterallywith their opposite numbers in the devolved administrations on aparticular subject, before consulting more widely on the basis of anagreed approach. In other cases, they could include the devolvedadministrations from the outset in a multi-lateral consultation process.

Attendance and representation at Council of Ministers and relatedmeetings

B4.13 Ministers and officials of the devolved administrations have alegitimate interest in the preparation and presentation of the UK's EUpolicy where it touches on matters which fall within their responsibilityand therefore have a role to play in relevant Council meetings, and othernegotiations with EU partners.

B4.14 Decisions on Ministerial attendance and representation at Councilmeetings will be taken on a case-by-case basis by the lead UK Minister,recalling that the Memorandum of Understanding recognises theimportance of cooperation across a range of areas and the importance ofall four administrations working together, where appropriate, on mattersof mutual interest.

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B4.14a In reaching decisions on the composition of the UK team, thelead Minister will take into account that the devolved administrationsshould have a role to play in meetings of the Council of Ministers atwhich substantive discussion is expected of matters likely to have asignificant impact on their devolved responsibilities. Requests by theMinisters of Devolved Administrations to attend Council of Ministersshould be welcomed unless there is a compelling reason not to do so andwhich the lead Minister should be willing to explain.

B4.15 Policy does not remain static in negotiations and continuinginvolvement is a necessary extension of involvement in formulating theUK's initial policy position. The role of Ministers and officials from thedevolved administrations will be to support and advance the single UKnegotiating line which they will have played a part in developing. Theemphasis in negotiations has to be on working as a UK team; and the UKlead Minister will retain overall responsibility for the negotiations anddetermine how each member of the team can best contribute to securingthe agreed policy position. Recalling that the Memorandum ofUnderstanding recognises that it may be appropriate for all fouradministrations to undertake activities on each other's behalf, the leaderof the delegation could, in appropriate cases, agree to Ministers from thedevolved administrations speaking for the UK in Council. Whereappropriate and when more than one Minister from a devolvedadministration wishes to represent the UK, this will be agreed on a case-by-case basis by the devolved administrations and, if agreement is notreached in good time, be finally determined by the lead UK Minister. AnyMinisters representing the UK would then do so with the full weight ofthe UK behind them, because the policy positions advanced will havebeen agreed among the UK interests.

B4.16 Attendance by officials of the devolved administrations at EUmeetings will continue, as at present, to be agreed bilaterally with thelead Whitehall Department. Such agreement would also cover attendanceat Presidency and Commission chaired meetings, including thosediscussing implementation matters. The role of officials from thedevolved administrations will be to support and advance the single UKnegotiating line which they will have played a part in developing.

Implementation of European Union Obligations

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B4.17 It will be the responsibility of the lead Whitehall Departmentformally to notify the devolved administrations at official level of any newEU obligation which concerns devolved matters and which it will be theresponsibility of the devolved administrations to implement in Scotland,Wales or Northern Ireland (although the arrangements for policyformulation and negotiation described above should ensure that thedevolved administrations are already aware of new obligations). Inaddition, Whitehall Departments will, as necessary, liaise closely with thedevolved administrations about the implementation by UK legislation ofobligations in non-devolved areas, particularly where these could touchon areas which fall within the responsibility of the devolvedadministrations.

B4.18 For matters falling within the responsibility of the devolvedadministrations, it is for the devolved administrations to consider, inbilateral consultation with the lead Whitehall Department, and otherDepartments and devolved administrations if appropriate, how theobligation should be implemented and administratively enforced (ifappropriate) within the required timescale, including whether thedevolved administrations should implement separately, or opt for GB orUK legislation. Where a devolved administration opts to implementseparately, it will have a responsibility to consult the lead WhitehallDepartment bilaterally, and other Departments as necessary, on itsimplementation proposals, to ensure that any differences of approachnonetheless produce consistency of effect and, where appropriate, oftiming. The same official and Ministerial mechanisms as for policyformulation will operate where wider inter-Departmental discussion isnecessary.

B4.19 Following the consultation referred to in paragraph B4.17,notification to the European Commission of such separateimplementation should be sent through UKRep, involving the leadWhitehall Department as necessary, and copying to them in any event. Incases where there is a need for a consolidated UK communication to theEuropean Commission, this should be co-ordinated by the lead WhitehallDepartment and copied to the devolved administrations, but withoutprejudice to the devolved administrations' responsibility forimplementation. Areas which require such co-ordination may bespecified in the relevant bilateral concordats.

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B4.20 Where EU legislation provides, in relation to matters falling withinthe responsibility of the devolved administrations, for the possibility oflocal measures or derogations within Member States, subject toCommission approval, and where such legislation is being implementedseparately in Scotland, Wales or Northern Ireland, the relevant devolvedadministrations will first consult the lead Whitehall department onwhether there are wider UK policy implications. Whitehall departmentswill also inform the devolved administrations of any similar plans theymight have. If, following such consultation, a devolved administrationwishes to proceed with such local measures, the request for approval willbe routed through UKRep, involving the lead Whitehall Department asnecessary, and copying to them in any event.

B4.21 Under the devolution legislation, UK Ministers may split aquantitative EU obligation on the UK, such as a quota, to facilitate thetransfer of part of it to the Scottish Ministers, Northern Ireland Ministersor departments and the Welsh Ministers. The devolved shares can beenforced as a devolution issue on the same basis as any other function ofobserving and implementing an EU obligation. The size of the devolvedshare should be equitable, taking into account the extent of the powersof the devolved legislatures and executives and the possibility that therange of measures which can be taken to fulfil an obligation could lieacross both non-devolved and devolved areas. UK Ministers will consultthe devolved administrations before any order is made to apportion thedevolved share of such an obligation, and the UK Government has madeit clear to Parliament that it would do its best to reach agreement withthem.

Enforcement of European Union Obligations

B4.22 Where they have devolved responsibilities for the enforcement ofEC obligations, the devolved administrations will co-operate fully withthe relevant lead Whitehall Department. The devolved administrationsand lead Whitehall Department will, in such cases, consult and informeach other of their chosen methods of enforcement of EU instruments.They will also consult with each other on any enforcement difficultiesbefore they are discussed with the European Commission, and on anycorrective action demanded by the Commission.

Infraction Proceedings

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B4.23 Where the European Commission instigates informal or formalproceedings against the UK for alleged breaches of EU law, the CabinetOffice will commission and co-ordinate the UK response, which will besent by UKRep on behalf of the UK Government.

B4.24 Where a case relates solely to implementation in Scotland, Wales,or Northem Ireland in relation to a matter falling within theresponsibility of a devolved administration, the draft reply will beprepared by the appropriate devolved administration and agreed atofficial, and where necessary, Ministerial level with interested Whitehalldepartments. It will be submitted through UKRep in the normal way asoutlined in Paragraph B4. 19. Where a case partly concernsimplementation of a devolved matter in England and one or more of thedevolved regions, the lead Whitehall department will prepare the draftreply in bilateral consultation, at official or Ministerial level asappropriate, with the relevant devolved administrations. Such aprocedure will also be followed where a case concerns implementation inScotland, Wales or Northern Ireland in relation to a non-devolved matter.

B4.25 Where a case partly or wholly involving implementation by adevolved administration is referred to the European Court of Justice, thedevolved administration will contribute to the preparation of the UK'ssubmissions to the Court. The devolved administration would take thelead in doing so for cases wholly concerned with implementation inrelation to a matter falling within its responsibility, agreed as appropriatewith the relevant Whitehall departments. The Cabinet Office and theTreasury Solicitors Department will co-ordinate the UK's submissions tothe Court.

B4.26 To the extent that financial costs and penalties imposed on the UKarise from the failure of implementation or enforcement by a devolvedadministration on a matter falling within its responsibility, or from thefailure of a devolved administration to meet its share of an EC quota orobligation, responsibility for meeting these will be borne by the devolvedadministration. These provisions are without prejudice to the continuingoperation of standing arrangements in respect of EU programmes fundedas Annually Managed Expenditure (AME). Where financial costs andpenalties are imposed on the UK, under powers conferred by Part 2 of theLocalism Act 2011, Ministers of the Crown may, by order, designatecertain public authorities in the UK (including in the DevolvedAdministrations) considered to have caused or contributed to the

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infraction, in relation to non-devolved functions of a public nature. Thiswould be for the purpose of recovering some or all of the cost from thepublic authority. Section 49 of the Act requires Ministers to issue, andhave regard to, a policy statement relating to their use of these powersand this policy statement will contain further information of relevance to .Devolved Administrations. Section 55 of the Act requires Ministers tohave regard to the need to avoid any prejudicial effect on theperformance by a mixed function authority of its devolved functions. TheMinister would also consult the devolved administration as and when isappropriate.

Representation in Brussels and Links with European UnionInstitutions

B4.27 The status and functions of the UK Permanent Representation inBrussels as the institution representing the United Kingdom within theEuropean Union will continue unchanged.

B4.28 The devolved administrations are able to take part in the lessformal discussions with the institutions of the EU and interests withinother Member States. Subject to paragraph B4.26 above, the devolvedadministrations are able, and have chosen to establish an office inBrussels, to assist direct relationships, including with other regionalgovernments and with the institutions of the European Union, so far asthis serves the exercise of their powers and the performance of theirfunctions as laid down in the devolution legislation and so far as it isconsistent with the responsibility of the UK Government for relationswith the EU. The Devolved Administration EU offices (DAEUOs) are partof UKRep organisational structure and their UK-based staff arepermanent UK civil servants issued with British diplomatic passports. Aspart of the diplomatic representation of the UK they are subject to theauthority of the Permanent Representative in respect of the usual issuesof personal conduct. On this basis, the UK-based staff of the devolvedadministrations' EU Offices, have diplomatic status, and are notified tothe Belgian authorities by the Permanent Representation accordingly.Both UKRep and the DA EU offices will develop working procedureswhich reflect the need to balance the interests of all parts of the UK.

B4.29 Staff of the devolved administrations will continue to be eligible forsecondment to UKRep and to the institutions of the EU.

Nominations of Representatives

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B4.30 The devolved administrations will be responsible for nominatingtheir established share of representatives within the Committee of theRegions and the Economic and Social Committee. Such nominations willthen be forwarded to the FCO. The final decision on proposals for UKappointments will continue to be made formally by the Foreign Secretary,with the agreement of the Prime Minister, after co-ordination by the FCOand Cabinet Office.

B4.31 The devolved administrations will be consulted by the UKGovernment on appointments to other European Institutions whereappropriate.

Scrutiny of EU Legislation

B4.32 The devolved legislatures may wish to set up a procedure to allowthem to scrutinise EU issues relating to devolved matters to ensure itsinterests are properly reflected.

B4.33 The lead Whitehall Department will liaise as necessary with thedevolved administrations in the preparation of Explanatory Memorandarelating to such matters, and will keep them informed. The UKDepartment will send the finalised Explanatory Memorandum to thedevolved administrations at the same time that it is submitted to the UKParliamen t.

B4.34 Officials of the devolved administrations will pass on to theirWhitehall counterparts the views of the devolved legislatures as soon asthese are known. Where timing allows, the UK Government undertakesto take account of these views in formulating the UK's negotiatingposition, which will continue to balance the interests of all parts of theUK.

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C: CONCORDAT ON FINANCIAL ASSISTANCE TO INDUSTRY

Introduction

C1 The White Papers "Scotland's Parliament" and "A Voice for Wales"said that financial assistance to industry would be devolved to theScottish Parliament and National Assembly for Wales, subject to commonUK guidelines and consultation arrangements to be set out in apublished concordat. Similarly, the Northem Ireland Act 1998 providesthat executive and legislative authority for transferred matters, includingfinancial assistance to industry, is devolved to the Northem IrelandAssembly.

C2 The arrangements set out in this Concordat are consistent with thedevolution of responsibility from the United Kingdom Government to thedevolved administrations. They will work on the basis of transparency,trust and consensus; and will balance the aims of fairness and value formoney with the need to negotiate flexibly and effectively.

C3 In drawing up this Concordat, particular account has been takenof the financial assistance offered to inward investors. Building onexisting practice, there will continue to be an arrangement covered bythe Concordat, providing for consultation and agreement betweeninterested parties where two or more parts of the UK are incompetition for a major investment.

C4 This Concordat does not create any legal relations between thesignatories nor any legal right to be consulted.

Legislation

C5 There will be mutual consultation between all parties to thisConcordat, in adequate detail and to a reasonable timescale, on anyproposals for new legislative provision (whether primary or secondarylegislation) for financial assistance to industry.

Consultation on particular cases

C6 There will be mutual consultation, between the interested parties ineach particular case, in adequate detail and to a reasonable timescale,before making offers (formal or indicative) of financial assistance to caseswithin the following categories:• large mobile investments where there is an interest in more than one

constituent part of the UK;

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• where it is proposed to breach agreed financial limits envisaged inparagraph C14; and

• involving relocation from one part of the UK to another.

Ministerial Group

C7 It is anticipated that for the most part the implementation of thearrangements set out in this Concordat will be undertaken at officiallevel. If necessary, however, the arrangements may be overseen byrepresentatives of the United Kingdom Government and the devolvedadministrations, in a Group whose members will be:

• Ministers from the Department for Transport; the Treasury; theDepartment for Business, Innovation and Skills; and the Foreign andCommonwealth Office;

• Ministers representing each of the devolved administrations.

C8 Its terms of reference will be:

• to facilitate the exchange of information on financial assistancebetween the United Kingdom Government and the devolvedadministrations; and

• to allow consensus to be reached on the level of assistance to beoffered to those large mobile investment projects for which two ormore parts of the UK are in competition.

C9 There will be an official group to support the Ministerial Group. It willbe established under Cabinet Office chairmanship, and will reportannually to Ministers on the operation of the Concordat.

Independent Evaluation

C10 There will be continuing periodic independent evaluation of majorprogrammes of financial assistance to industry on the model of previousevaluations of Regional Selective Assistance (RSA).

Guidelines

C11 All parties to the Concordat have equivalent aid schemes based onthe HMT Green Book and State aid rules. All parties to this Concordatcommit to mutual consultation in adequate detail and to a reasonabletimescale where any party proposes to change its policy and practice.

Inward Investment

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C12 The UK Government will continue to be responsible for promotion ofthe UK as a whole to foreign investors. Promotion of the UK and itsconstituent parts to foreign investors will be co-ordinated through theadherence of all concerned to guidelines agreed by the InternationalBusiness Development Forum, on which the devolved administrationswill be represented along with UKTrade & Investment.

C13 Where inward investment functions are carried out by publiclyfunded bodies, or private sector companies acting on their behalf, the UKGovernment or devolved institution sponsoring the body concerned will,as now, ensure that it follows the agreed guidance on the handling ofinward investment negotiations. Consultation on those large mobilecases for which two or more parts of the UK are in competition will be co-ordinated by officials in the administrations concerned except in thosecases in which the involvement of the Ministerial Group is necessary. Inthe latter cases the secretariat to the Ministerial Group, overseen by theofficial forum referred to above, will co-ordinate the consultation. Thesecretariat will have no direct contact with potential investors which willnegotiate primarily with the relevant national bodies.

Financial Limits

C14 Where there is only one UK location being considered for a projectthe financial limits are governed by EU State Aid rules. Where a potentialinvestor is considering two or more locations in the UK the Concordatrequires that the administrations involved will agree the appropriate levelof financial support, subject always to compliance with State Aid rules.

Relations with the European Union

C1S Financial assistance to industry is an area which is subject to EUState Aid rules. In particular, the EU has certain powers under Articles107and 108 of the Treaty on the Functioning of the European Union. Asregards relations with the European Union, Ministers and officials of thedevolved administrations will be fully involved in discussions within theUK Government about the formulation of the UK's policy position on allissues which touch on financial assistance to industry. This will requiremutual respect for the confidentiality of those discussions and adherenceto the resultant UK line. All parties to the Concordat are covered and willabide by EU rules on state aid.

C16 The UK Government commits itself to adequate consultation to areasonable timescale with the devolved administrations on its dealingswith the European Commission (and other European Union institutionsas appropriate) on State Aids policy. By the same token, the devolvedadministrations undertake to maintain adequate consultation to a

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reasonable timescale with the UK Government on any measure whichmay require notification, and to respond within a reasonable timescale toenquiries received from the UK Government on actual or potential Stateaid measures or on consultation about new policy developments.

C17 The designation of assisted areas, including related domesticlegislation, is a reserved function and will remain the responsibility of theUK Government. There will, however, be adequate consultation to areasonable timescale by the UK Government with the devolvedadministrations on the methodology and detail of any proposed revisionsto the assisted areas map prior to putting proposals to the EuropeanCommission.

Consultation and Dispute Resolution

CI8 Where there is a need for consultation or where disputes arisebetween the UK Government and the devolved administrations on thematters covered by this Concordat, the majority of matters should becapable of being handled routinely among officials of the Departments inquestion. Where it proves impossible to reach a consensus betweenofficials disputes, except those to which paragraphs C7-C9 apply, will beresolved via the mechanisms outlined in agreement A3 of thisMemorandum of Understanding.

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D: CONCORDAT ON INTERNATIONAL RELATIONS

Dl: Concordat on International Relations - Scotland

D1.1 This concordat sets out how the United Kingdom Government andScottish Ministers will co-operate with respect to international relations.Common arrangements between the United Kingdom Government andthe devolved administrations are set out in the attached Annex (D4). Thiscovers:

• exchange of information;formulation of United Kingdom policy and conduct of international

negotiations;• implementation of international obligations;• co-operation over legal proceedings;• representation overseas;• secondments and training co-operation;• visits;• public diplomacy, the British Council and BBC World Service;• trade and investment promotion; and• diplomatic and consular relations.

D1.2 The concordat is not intended to constitute a legally enforceablecontract or to create any rights or obligations that are legally enforceable.It is intended to be binding in honour only. It is underpinned by theMemorandum of Understanding between the United KingdomGovernment, Scottish Ministers, the Welsh Ministers and the NorthernIreland Executive Committee. It is to be read in accordance with theScotland Act 1998 ("the Act") which takes precedence. It does not coverthe co-ordination of EU policy at official and Ministerial level between theUnited Kingdom Govemment and the devolved administrations. This isdealt with in a separate concordat on EU business.

D1.3 Under the devolution settlement, the United Kingdom Governmentis responsible for international relations. The Secretary of State forForeign and Commonwealth Affairs is responsible for the foreign policy ofthe United Kingdom, and has overall responsibility for concludingtreaties and other international agreements on behalf of the UnitedKingdom, ensuring compliance with the United Kingdom's EU and otherinternational obligations, conducting international litigation on behalf ofthe United Kingdom, nominations to international bodies, and ensuringconsistency between foreign policy and the full range of policies of theUnited Kingdom Govemment, Northern Ireland Executive Committee,

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Scottish Ministers, and the Welsh Ministers. The Foreign andCommonwealth Office (FCO) promotes the international interests of theUnited Kingdom and all its constituent parts. United KingdomEmbassies, High Commissions and other Missions overseas serve theUnited Kingdom and all its constituent parts. Heads of Mission of UnitedKingdom Missions overseas are responsible for the co-ordination of allthe United Kingdom's official activities in the country to which they areaccredited.

D1.4 The UK Government recognises that the devolved administrationswill have an interest in international policy making in relation todevolved matters and also in obligations touching on devolved mattersthat the UK may agree as a result of concluding international agreements(including UN Conventions). Under the Act Scottish Ministers areresponsible for observing and implementing the international obligationsof the United Kingdom which relate to its functions. The FCO, and asappropriate other lead United Kingdom Departments, will provide theScottish Ministers with information and advice on internationaldevelopments that may affect its functions. The UK Government willinvite the Scottish Ministers to contribute to reports to internationalorganisations regarding the UK's compliance with internationalobligations which touch on devolved matters and will consider Scottishrepresentation when international organisations discuss such reports.

D1.5 The parties to this Concordat recognise that the conduct ofinternational relations is likely to have implications for the devolvedresponsibilities of Scottish Ministers and that the exercise of theseresponsibilities is likely to have implications for international relations.This Concordat therefore reflects a mutual determination to ensure thatthere is close co-operation in these areas between the United KingdomGovernment and the Scottish Ministers with the objective of promotingthe overseas interests of the United Kingdom and all its constituentparts.

Review and dispute resolution

D1.6 The United Kingdom Government and Scottish Ministers willmaintain full and detailed working-level contacts in regard tointernational relations. The Secretary of State for Foreign andCommonwealth Affairs and the First Minister or their nominees will meetannually or at the request of either party to review co-operation in regardto international relations.

D1.7 The Memorandum of Understanding sets out the procedures to befollowed in the event of disputes. Issues will normally be resolved by

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bilateral consultations between the responsible officials. Where a disputecannot be solved by this means, the issue will be reported to the FirstMinister and the Secretary of State for Foreign and CommonwealthAffairs who will seek to resolve the issue within the framework of theJoint Ministerial Committee. Except in cases of genuine urgency, thestatutory powers referred to in the Annex (D4) will not be exercised untilafter an ample opportunity has been allowed for consultation anddiscussion under this paragraph.

Dl.8 This Concordat will be reviewed annually.

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D2: Concordat on International Relations - Wales

D2.1 This concordat sets out how the United Kingdom Government andthe Welsh Ministers will cooperate with respect to international relations.Common arrangements between the United Kingdom Government andthe devolved administrations are set out in the attached Annex (D4). Thiscovers:

• exchange of information;• formulation of United Kingdom policy and conduct of international


D2.2 The concordat is not intended to constitute a legally enforceablecontract or to create any rights or obligations that are legally enforceable.It is intended to be binding in honour only. It is underpinned by theMemorandum of Understanding between the United KingdomGovernment, Scottish Ministers, the Welsh Ministers and the NorthernIreland Executive Committee. It is to be read in accordance with theGovernment of Wales Acts 1998 and 2006 ("the Acts") which takesprecedence. It does not cover the co-ordination of EU policy at officialand Ministerial level between the United Kingdom Government and thedevolved administrations. This is dealt with in a separate concordat onEU business.

D2.3 Under the devolution settlement, the United Kingdom Governmentis responsible for international relations. The Secretary of State forForeign and Commonwealth Affairs is responsible for the foreign policy ofthe United Kingdom, and has overall responsibility for concludingtreaties and other international agreements on behalf of the UnitedKingdom, ensuring compliance with the United Kingdom's EU and otherinternational obligations, conducting international litigation on behalf ofthe United Kingdom, nominations to international bodies, and ensuringconsistency between foreign policy and the full range of policies of theUnited Kingdom Government, Northern Ireland Executive Committee,Scottish Ministers, and the Welsh Ministers. The Foreign and

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Commonwealth Office (FCO) promotes the international interests of theUnited Kingdom and all its constituent parts. United KingdomEmbassies, High Commissions and other Missions overseas serve theUnited Kingdom and all its constituent parts. Heads of Mission of UnitedKingdom Missions overseas are responsible for the co-ordination of allthe United Kingdom's official activities in the country to which they areaccredited.

D2.4 The UK Government recognises that the devolved administrationswill have an interest in international policy making in relation todevolved matters and also in obligations touching on devolved mattersthat the UK may agree as a result of concluding international agreements(including UN Conventions). Under the Acts, the Welsh Ministers areresponsible for observing and implementing the international obligationsof the United Kingdom which relate to its functions. The FCO, and asappropriate other lead United Kingdom Departments, will provide theWelsh Ministers with information and advice on internationaldevelopments that may affect its functions. The UK Government willinvite the Welsh Ministers to contribute to reports to internationalorganisations regarding the UK's compliance with internationalobligations which touch on devolved matters and will consider Welshrepresentation when international organisations discuss such reports.

D2.S The parties to this Concordat recognise that the conduct ofinternational relations is likely to have implications for functions of theWelsh Ministers and that the exercise of their functions is likely to haveimplications for international relations. This Concordat therefore reflectsa mutual determination to ensure that there is close co-operation inthese areas between the United Kingdom Government and the WelshMinisters with the objective of promoting the overseas interests of theUnited Kingdom and all its constituent parts.


D2.6 The United Kingdom Government and the Welsh Ministers willmaintain full and detailed working-level contacts in regard tointernational relations. The Secretary of State for Foreign andCommonwealth Affairs and the First Minister or their nominees will meetannually or at the request of either party to review co-operation in regardto international relations.

D2.7 The Memorandum of Understanding sets out the procedures to befollowed in the event of disputes. Issues will normally be resolved bybilateral consultations between the responsible officials. Where a disputecannot be solved by this means, the issue will be reported to the First

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Minister and the Secretary of State for Foreign and CommonwealthAffairs who will seek to resolve the issue within the framework of theJoint Ministerial Committee. Except in cases of genuine urgency, thestatutory powers referred to in the Annex (D4) will not be exercised untilafter an ample opportunity has been allowed for consultation anddiscussion under this paragraph.

D2.8 This Concordat will be reviewed annually.

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D3: CONCORDAT ON INTERNATIONAL RELATIONS - NORTHERN

IRELAND

D3.1 This Concordat sets out how the United Kingdom Government andthe Northern Ireland Executive Committee will co-operate with respect tointernational relations. Common arrangements between the UnitedKingdom Government and the devolved administrations are set out in theattached annex (D4). This covers:

• exchange of information;formulation of United Kingdom policy and conduct of international


D3.2 The Concordat is not intended to constitute a legally enforceablecontract or to create any rights or obligations that are legally enforceable.It is intended to be binding in honour only. It is underpinned by theMemorandum of Understanding between the United KingdomGovernment, Scottish Ministers, the Welsh Ministers and the NorthernIreland Executive Committee. It is to be read in accordance with theNorthern Ireland Act 1998 ("the Act") which takes precedence. It does notcover the co-ordination of EU policy at official and Ministerial levelbetween the United Kingdom Government and the devolvedadministrations. This is dealt with in a separate concordat on EUbusiness.

D3.3 Under the devolution settlement, the United Kingdom Governmentis responsible for international relations. The Secretary of State forForeign and Commonwealth Affairs is responsible for the foreign policy ofthe United Kingdom, and has overall responsibility for concludingtreaties and other international agreements on behalf of the UnitedKingdom, ensuring compliance with the United Kingdom's EU and otherinternational obligations, conducting international litigation on behalf ofthe United Kingdom, nominations to international bodies, and ensuring

49

consistency between foreign policy and the full range of policies of theUnited Kingdom Government, the Northern Ireland Executive Committee,Scottish Ministers, and the Welsh Ministers. The Foreign andCommonwealth Office (FCO) promotes the international interests of theUnited Kingdom and all its constituent parts. United KingdomEmbassies, High Commissions and other Missions overseas serve theUnited Kingdom and all its constituent parts. Heads of Mission of UnitedKingdom Missions overseas are responsible for the co-ordination of allthe United Kingdom's official activities in the country to which they areaccredited.

D3.4 The UK Government recognises that the devolved administrationswill have an interest in international policy making in relation todevolved matters and also in obligations touching on devolved mattersthat the UK may agree as a result of concluding international agreements(including UN Conventions). Under the Act Northern Ireland Ministersare responsible for observing and implementing the intemationalobligations of the United Kingdom which relate to its functions. The FCO,and as appropriate other lead United Kingdom Departments, will provideNorthern Ireland Ministers with information and advice on internationaldevelopments that may affect its functions. The UK Government willinvite Northern Ireland Ministers to contribute to reports to internationalorganisations regarding the UK's compliance with internationalobligations which touch on devolved matters and will consider NorthernIreland representation when international organisations discuss suchreports.

D3.5 The parties to this Concordat recognise that the conduct ofinternational relations is likely to have implications for the devolvedresponsibilities of the Northern Ireland Executive Committee and that theexercise of these responsibilities is likely to have implications forinternational relations. This Concordat therefore reflects a mutualdetermination to ensure that there is close co-operation in these areasbetween the United Kingdom Government and the Northern IrelandExecutive Committee with the objective of promoting the overseasinterests of the United Kingdom and all its constituent parts.


D3.6 The United Kingdom Government and the Northern IrelandExecutive Committee will maintain full and detailed working-levelcontacts in regard to international relations. The Secretary of State forForeign and Commonwealth Affairs and the First Minister and deputyFirst Minister or their nominees will meet annually or at the request ofeither party to review co-operation in regard to international relations.

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D3.7 The Memorandum of Understanding sets out the procedures to befollowed in the event of disputes. Issues will normally be resolved bybilateral consultations between the responsible officials. Where a disputecannot be resolved by this means, the issue will be reported to the FirstMinister and deputy First Minister and the Secretary of State for Foreignand Commonwealth Affairs who will seek to resolve the issue within theframework of the Joint Ministerial Committee. Except in cases of genuineurgency, the statutory powers referred to in the Annex (D4) will not beexercised until after an ample opportunity has been allowed forconsultation and discussion under this paragraph.

D3.8 This Concordat will be reviewed annually.

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D: CONCORDAT ON INTERNATIONALRELATIONS

D4: Concordat on International Relations: Common Annex

Introduction

D4.1 This paper sets out the common arrangements agreed between theUK Government and the devolved administrations. It covers:

• exchange of information;

• formulation of UK policy and conduct of international negotiations;

• implementation of international obligations;

• co-operation over legal proceedings;

• representation overseas;

• secondments and training co-operation;

• visits;

• public diplomacy, the British Council and BBC World Service;

• trade and investment promotion; and

• diplomatic and consular relations.

Exchange of Information

D4.2 The devolved administrations will need to be aware of internationaldevelopments that touch on devolved matters (including non-devolvedmatters that impact upon devolved areas) and to take account of theimplications of these developments. Therefore the FCO, and whereappropriate other lead UK Departments, will provide the devolvedadministrations with timely, relevant and comprehensive informationand analysis on international developments that may affect theirresponsibilities or be relevant to their interests. This will include relevantreporting from UK Missions overseas, and proposals for new UKlegislation and early copies of proposed UK legislation on internationalrelations.

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D4.3 The FCO and other lead UK Departments will need to be aware ofdevelopments in or as regards Northern Ireland, Scotland and Wales thattouch on international relations (including devolved matters that impactupon international relations) and to take account of the implications ofthese developments. Therefore the devolved administrations will providethe FCO, and where appropriate other lead UK Departments, with timely,relevant and comprehensive information and analysis on developmentsin or as regards Northern Ireland, Scotland and Wales that may affecttheir responsibilities or be relevant to their interests. This will includeinformation on contacts and discussions with foreign national or sub-national governments or counterparts in international organisations",and proposals for new legislation and early copies of proposed legislationon devolved matters.

D4.4 Complete confidentiality is often essential in matters touching oninternational relations and in formulating a UK policy position.Arrangements agreed in this concordat will rely for their effectiveness onmutual respect for the confidentiality of information (including statistics)exchanged.

Formulation of UK policy and conduct of international negotiations

D4.S The FCO, or as appropriate another lead UK Department, willconsult the devolved administrations about the formulation of the UK'sposition for international negotiations, to the extent that the negotiationstouch on devolved matters (including non-devolved matters which impactupon devolved areas). The devolved administrations will be sent copies ofpapers, including relevant interdepartmental correspondence, and beinvited to meetings on subjects in which they have a devolved policyinterest. Where necessary, the FCO will facilitate contacts and ensurethat timely consultation takes place. The UK Government alone has thepower to enter into treaties or other international agreements binding onthe UK in international law and will undertake the negotiation of allbinding international agreements and multilateral internationalarrangements (e.g. the Rio Declaration), following the consultationarrangements referred to above.

D4.6 The devolved administrations may hold working-level discussionson devolved matters with foreign national or sub-national governmentsor appropriate counterparts in international organisations. The devolvedadministrations may, in co-operation with the FCO, make arrangements

4 For the Northern Ireland administration, this will include information on negotiationswith the Irish Government for the conclusion of international arrangements undersection 53 of the Northern Ireland Act 1998 including the establishment of cross-borderimplementation bodies.

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or agreements with foreign national or sub-national governments orappropriate counterparts in international organisations, to facilitatecooperation between them on devolved matters, provided that sucharrangements or agreements do not purport to bind the UK ininternational law, affect the conduct of international relations orprejudice UK interests. (It is an inherent part of the Belfast Agreement(Command Paper 3883) that, on matters within their competence, thedevolved administrations may hold discussions and make arrangementswith the Irish Government in the context of the British-Irish Councils].The devolved administrations will consult the FCO in advance about anycontact, correspondence, or proposal that is novel or contentious, mightcreate a contingent international liability or may have implications forinternational relations.

D4.7 Where international negotiations bear directly on devolved matters,it may be appropriate for Ministers or officials from the devolvedadministrations to form part of a UK negotiating team. The role ofMinisters or officials from the devolved administrations will be as part ofa UK team to support and advance the single UK negotiating line whichthey will have played a part in developing. The UK lead Minister willretain responsibility for the negotiations and will determine how eachmember of the team can best contribute to securing the agreed position.In appropriate cases, and by agreement with the FCO (or whereappropriate another lead UK department) Ministers or officials from thedevolved administrations could speak for the UK in internationalmeetings.

5 Paragraph 10 of the British-Irish Council section of Strand 3 of the Agreement statesthat "it will be open to two or more members [of the British-Irish Council] to developbilateral or multilateral arrangements between them. Such arrangement could include,subject to the agreement of the members concerned, mechanisms to enableconsultation, co-operation and joint decision making on matters of mutual interest; andmechanisms to implement any joint decisions they may reach".

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Implementation of international commitments

D4.8 Under the devolution legislation, the devolved administrations areresponsible for observing and implementing international obligationswhich relate to devolved matters". They are similarly responsible in areaswhere they or the UK Government have made commitments underinformal instruments". In common with other parts of the UK, thedevolved administrations expect to observe the terms of these informalinstruments which have been entered into in good faith. The FCO orother lead UK Department will formally notify the devolvedadministration of any new international commitment concerningdevolved matters which it will be the responsibility of the devolvedadministration to implement (although the arrangements described inparagraphs 2-4 should ensure that the devolved administrations arealready aware of new commitments). Such notification should take placeas soon as the instrument has been concluded in order to allow sufficienttime for the devolved legislatures to make any necessary legislation priorto ratification.

D4.9 Under the devolution legislation, the UK Government may bysubordinate legislation split a quantitative international obligation, such

6 It is essential that the UK Government is in a position to implement internationalobligations it has undertaken in good faith. The UK Government therefore has power toensure that the devolved administrations take action to give effect to the UK'sinternational obligations and do not take actions which would be incompatible with thethese obligations. Section 58 of the Scotland Act 1998, section 26 of the NorthernIreland Act 1998, and section 82 of the Government of Wales Act 2006, give the UKGovernment power to order that a proposed action by a devolved administration shouldnot be taken if it would be incompatible with any international obligation of the UK ordirect that action be taken to give effect to any such obligation. Under section 35 of theScotland Act, the Secretary of State may make an order prohibiting the Presiding Officerfrom submitting a Bill of the Scottish Parliament for Royal Assent if he has reasonablegrounds to believe that it contains provisions which would be incompatible with anyinternational obligations of the UK. Similarly, under section 14 of the Northem IrelandAct the Secretary of State may decide not to submit a Bill of the Northern IrelandAssembly for Royal Assent which contains a provision which he considers would beincompatible with any international obligations of the UK. Section 101 and 114 of theGovernment of Wales Act 2006 permit the Secretary of State by order to prohibit theClerk of the National Assembly for Wales from submitting a proposed AssemblyMeasure for approval by Her Majesty in Council, or submitting an Assembly Bill forRoyal Assent, if it contains provisions that he has reasonable grounds to believe wouldbe incompatible with any intemational obligation. The UK Government may also revokeany subordinate legislation made by a devolved legislature if it contains provisionswhich would be incompatible with any international obligations.7 The term "informal instruments" covers international instruments which have nobinding force in international law, but which evidence a political commitment by theStates accepting them. It can include instruments describing themselves as"recommendation", "resolution", "declaration", "conclusions" and "charter".

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as a quota, and transfer part of it to the devolved administration''. Thesize of the devolved administrations' shares will be a matter fornegotiation, taking into account the extent of the powers of the devolvedlegislatures and administrations and the range of measures relating todevolved and non-devolved matters which might be taken to fulfil anobligation. The devolved administrations must be consulted before anyorder is made to apportion their share of such an obligation, and the UKGovernment has made it clear to Parliament that it would expect to useits best endeavours to reach agreement with them.

D4.10 It will be for the devolved administration and the FCO, or otherlead UK Government Department, to consider how to implement aninternational commitment which relates to devolved matters. Where thecommitment is to be implemented separately by the devolvedadministration, they will consult and agree their implementationproposals with the FCO or other lead UK Government Department toensure that any differences of approach are compatible with the need forconsistency of effect and of timing where that is appropriate. Where thecommitment is to be implemented by UK legislation, the FCO or otherlead UK Government Department will consult and agree theirimplementation proposals with the devolved administrations where thesemay impact on devolved matters. The devolved administrations willensure that when necessary UK legislation making provision aboutdevolved matters is laid before the devolved legislatures.

D4.11 The UK Government will, under normal circumstances, not askthe UK Parliament to legislate in any area for which legislativecompetence has been devolved except with the agreement of the devolvedlegislature. But instances may arise, for reasons such as urgency, wherefull consultation and agreement is impractical. The UK Governmentintends, for example, to continue the practice of implementing UNSecurity Council Resolutions by means of Orders in Council under theUnited Nations Act 19469• The Foreign Secretary will remain theresponsible authority for the preparation of such orders.

Co-operation over legal proceedings

D4.12 The FCO will continue to act as the Agent of the UK Governmentin responding to all applications brought against the United Kingdomunder the European Convention on Human Rights including those

8 Section 27 of the Northern Ireland Act 1998, section 106 of the Scotland Act 1998,and sections 80 and 82 of the Government of Wales Act 2006.9 Despite the general devolution of the functions of observing and implementinginternational obligations, powers under any Order in Council made under section 1 ofthe 1946 Act may be exercised concurrently in or as regards Scotland by UK Ministers.

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arising from devolved matters. Where the case relates wholly or partly toimplementation of a devolved matter, the devolved administrations willadvise the FCO on the facts and the domestic law, contribute on thoseissues to any instructions to counsel, take part in the UK team for anyhearings etc. The competent legal authorities-v should also be consultedas to which counsel should be appointed. In the event of a decisionagainst the UK, the devolved administrations will be responsible forputting in place any domestic measures necessary to implement thejudgement. The UK is obliged under the Convention to implementjudgements against it.

D4.13 The FCO, in its established role in handling proceedings in whichthe UK is involved before the International Court of Justice or otherinternational courts or tribunals, will consult fully with the devolvedadministrations where such proceedings bear upon the exercise of thedevolved matters.

D4.14 The devolved administrations will be responsible for the paymentof any compensation and costs awarded against the UK by internationalcourts or tribunals and for payment of Counsel's fees, to the extent thatthese arise from the failure of the devolved administration to implementor enforce an obligation or failure to meet their share of an intemationalquota.

Representation Overseas

D4.1S The devolved administrations may establish offices overseaswithin the framework of their responsibility for devolved matters(including for the provision of information on devolved matters to thepublic, regional governments and institutions, and promotion of tradeand inward investment). They will do so in consultation with the FCO.Where appropriate, such representation might form part of a UKDiplomatic or Consular Mission. The representatives of the devolvedadministration could then make use of the diplomatic bag, the FCOtelegram and other communications systems, and be accordeddiplomatic status in accordance with local customs and operationalrequirements. The FCO will recover the costs of the services provided inline with its practice for charging UK Govemment Departments. UKEmbassies, High Commissions and other Missions overseas will continueto serve the interests of the UK as a whole and to co-ordinate all officialactivity.

Secondments and training co-operation

10 The Lord Advocate in Scotland, Northern Ireland Legal Advisers, and the CounselGeneral to the Welsh Assembly Government.

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D4. 16 The FCO and the devolved administrations will work to buildeffective institutional links including through reciprocal exchange andsecondment of officials and co-operation on training. This should providesignificant benefits to all parties; strengthen relationships and contributetowards good working arrangements; and assist the career and personaldevelopment of the personnel involved.

Visits

D4.17 The FCO will provide appropriate support to Ministers of thedevolved administrations, members of the devolved legislatures andofficials travelling overseas. The FCO will recover the cost of this supportas appropriate in line with its practice for charging other UK GovernmentDepartments.

D4.18 The FCO, other UK Departments, and the devolvedadministrations will co-operate in arranging programmes in NorthernIreland, Scotland and Wales for official guests of the UK Government.Early consultation regarding possible visits will help to ensure thesuccess of those visits. The FCO and, where appropriate, lead UKDepartments will also continue to co-operate with the devolvedadministrations in arranging international meetings and Summitconferences in Northern Ireland, Scotland and Wales hosted by the PrimeMinister or by other UK Ministers. The devolved administrations willkeep the FCO and, where appropriate, the lead UK Department, informedof proposals for other visits and meetings in Northern Ireland, Scotlandand Wales involving foreign government ministers, members of foreignregional governments, senior officials and representatives of internationalorganisations. The Government Hospitality section of the Foreign andCommonwealth Office and the devolved administrations will co-operatein organising official entertainment in Northern Ireland, Scotland andWales on behalf of UK Ministers. The devolved administrations may alsomake use of section's services on a repayment basis.

Public diplomacy, the British Council and BBC World Service

D4.19 The FCO will continue to promote the UK and all its constituentparts through public diplomacy overseas and will work closely on thiswith the devolved administrations. FCO information products - includingfilms, publications and the Internet site - will continue to present thediversity of England, Scotland, Wales and Northern Ireland.

D4.20 The British Council will continue to promote the UK and all itsconstituent parts. The British Council will maintain operational linkswith the devolved administrations though its office in Belfast, Edinburgh

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and Cardiff and will invite two senior officials from each devolvedadministration to sit respectively on its advisory Northern Ireland,Scottish or Welsh Committees. The devolved administrations will also beable to use the Council's expertise for specific tasks on a contract basis.

D4.21 The BBC World Service aims to bring benefit to the UK and all itsconstituent parts by broadcasting authoritative and impartial news andinformation. The devolved administrations are invited to maintain directlinks with the BBC World Service on matters of mutual interest.

Trade and inward investment promotion

D4.22 The devolved administrations and the UK Government haveconcurrent powers to promote intemational trade and inwardinvestment. UK Trade & Investment has lead UK responsibility for theprovision of support and assistance to new and existing exporters ofgoods and services and outward investors both at home and overseasand for promoting the UK and all its constituent parts to foreigninvestors. The devolved administrations are responsible for devising andimplementing additional programmes to meet the particular needs ofcompanies in Northern Ireland, Scotland and Wales and for promotingNorthern Ireland, Scotland and Wales to foreign investors. UK Trade &Investment, the FCO, BIS, other lead UK Government Departments anddevolved administrations will consult each other on policy developmentsand activities to avoid duplication of effort, including double funding ofactivities, and to avoid contradictory actions. The devolvedadministrations will be represented on the International BusinessDevelopment Forum, along side UKTrade & Investment and the RegionalDevelopment Agencies. Promotion of the UK to foreign investors will beco-ordinated through adherence of all concerned to guidelines agreed bythe Intemational Business Development Forum.

Diplomatic and consular relations

D4.23 The FCO will continue to be responsible for policy on diplomaticand consular relations with other countries and on all mattersconcerning international organisations represented in the UK. The FCOwill continue to be the channels for all official communications onmatters relating to Foreign and Commonwealth consulates andinternational organisations and their staff in Northern Ireland, Scotlandand Wales. The FCO will inform the devolved administrations of allcareer consular appointments in Northern Ireland, Scotland and Wales.The FCO will consult the devolved administrations about theestablishment of new consular offices, new honorary consularappointments, and other new offices where personnel will have privileges

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and immunities (e.g. certain cultural centres and trade offices) inNorthern Ireland, Scotland and Wales. The devolved administrations willimmediately pass on to the FCO any representations made bydiplomatic/ consular missions and international organisations. Thedevolved administrations will also promptly notify the FCO of any allegedbreaches within their devolved competence. The FCO will then take theappropriate action under the Vienna Conventions on Diplomatic andConsular Relations or any applicable Consular Convention orHeadquarters Agreement.

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